Ford: Photos Of Your Car Are Copyright Infringement

Well, this seems misguided. A group of people who are members of the “Black Mustang Club” wanted to take some pictures of their cars and make a calendar using CafePress. Turns out, CafePress refuses to publish pictures of Ford cars due to claims of copyright infringement:

I got some more info from the folks at cafepress and according to them, a law firm representing Ford contacted them saying that our calendar pics (and our club’s event logos – anything with one of our cars in it) infringes on Ford’s trademarks which include the use of images of THEIR vehicles. Also, Ford claims that all the images, logos and designs OUR graphics team made for the BMC events using Danni are theirs as well. Funny, I thought Danni’s title had my name on it … and I thought you guys owned your cars … and, well … I’m not even going to get into how wrong and unfair I feel this whole thing is as I’d be typing for hours, but I wholeheartedly echo everything you guys have been saying all afternoon. I’m not letting this go un-addressed and I’ll keep you guys posted as I get to work on this.
I’m sorry, but at this point we will not be producing the 2008 BMC Calendar, featuring our 2007 Members of the Month, solely due to Ford Motor Company’s claim that THEY own all rights to the photos YOU take of YOUR car. I hope to resolve this soon, and be able to provide the calendar and other BMC merchandise that you guys want and deserve! This thread will remain open for you to comment however you wish, and I’ll update it as needed.

Ford doesn’t really have a case. You can take pictures of your car and you own the rights to the photo. The trouble comes when they try and sell it as a ford mustang calender. If they fought it they’d likely win from the designs I saw on the BMG site. Trouble is who has the money to fight ford’s lawyers. This is no different than alot of suits the RIAA has filed where they have no case, but nobody wants to risk the battle.

This is a very serious issue for professional photographers. While the photographer owns the copyright of the photo they take, they are taking a photo of trademarks owned by Ford including the design of the car, and the Ford name and logo. Car companies have sued/threatened to sue photographers for using photos of their cars in commercial use.

This is true even for recognizable buildings. The building owner or architect of famous buildings have threated action against photographers for commercial use of photos of their buildings or photos containing their building like a skyline photo.

I have also heard of airlines taking action for airport photos that have their planes in them. This is why you will often see the names or livery of planes Photoshopped in airport photos.

I do not know if a court has yet ruled on the legitimacy of these claims.

My response: post a summary and links to the story on a widely-trafficked car discussion forum. If Ford doesn’t want to support its customers, or CafePress doesn’t want to support theirs, then we’ll just have to spread the word of this insanity. Bad publicity doesn’t help businesses keep customers.

The world has gone mad. You would think a crappy company such as Ford would take all the free publicity they could get. They basically have one foot on the corporate banana peal, make cars no one wants and then attack their owners. Good public relations.

@SoCalGNX: I’ve heard of this. If you’re TOO GOOD Wal-Mart will accuse you of being a copyright infringer and refuse to print your own photos. Sad but true.

Judging from the photos in my own Gallery, I bet they’d try the same thing on me. Just another reason not to go to Wal-Mart; there’s a great family-owned decades-old camera shop just down the street from me that does photo printing. I’ll be patronizing them for all my photo-printing needs.

@Photogdc: I don’t think a calendar like this is a for-profit commercial use. I’m a member of a very similar VW club, and we had a discussion about this. We do not have VW logos in the club T-shirt for example, we have disclaimers that we aren’t associated with VW, and we don’t publish a calendar but if we did I’m sure we wouldn’t put the logo front and center (although I do have photos of the logo from the front of my car on my website, I don’t make a profit from those photos yet; when I do start offering for-pay print buying, the pictures with the logo won’t be buyable).

If they want to stop us from using their logo, fine; I’ll just edit the image so that the VW logo disappears. But if I want to take a photo of my own property, that’s my business, especially if I do it ON my own land or on public land (like a street or a park).

@Buran: On the other hand professional photographers are very appreciative of Walmart, Costco etc. when they question people or call us if our copyright stamp is on the back to check if it is legit. They don’t do this to be nice they are covering themselves since photo processors have been sued for copyright infringement.

It can be a hassle if they won’t print your own stuff but normally a business card or showing them your website will suffice.

@Buran: As I said I don’t know if a court has ruled on a case like this but I know threats have been made. The company will consider anything where money changes hands to be commercial use, a court may not, they may only consider something like selling the photo to be used in advertising etc. I don’t know I am not a lawyer.

On the issue of erasing the logo that is a start but they would probably claim they own the trademark to the design of the car to and still threaten action.

Actually, this is becoming a fairly common problem. One of my hobbies is plastic modelling, and many smaller manufacturers have had to go out of business because they cannot afford the liscensing fee that the makers of the real airplanes are charging. It’s pretty stupid.

The original post (especially given the title) is confusing two very different issues: copyright and trademark. The photographer owns the copyright in the artistic work that is a photograph. However, there may be other rights with regard to the *subject* of the photo. For example, if you see George Clooney walking down the street and shoot a picture, you own the picture, but you are not allowed to use it in an advertisement without Clooney’s permission to use his likeness. Similarly, while I won’t opine on whether the position taken by Ford is particularly strong, the claim is not related to the copyright in the photo, but in using their trademarks (logos, brands) in commerce (i.e. selling photos including the trademarks) without Ford’s permission.

@Photogdc: Then you’d have to ban all those ads with cars in them with no logos on them, which hasn’t happened as I see them all the time. So there is seemingly plenty of “case history” to argue that without the logo it’s OK to use the photo for profit.

@professorjonathan: It’s OK to use photos of people on the street — as long as they aren’t clearly recognizable or you can’t see a face. If your hypothetical photo was from the back, it’s different from one that shows the face and you can say “Oh, that’s soandso”.

@Photogdc: However, they still will refuse sometimes even if you bring in the form — they’ll accuse you of forging it. So if you get an idiot in the photo department who doesn’t like you, even if they’re your own pictures they’ll still treat you like dirt. I don’t appreciate being accused of doing something illegal, so I’d rather just go somewhere else that will respect me.

@GreatMoose: Ditto on that hobby though I haven’t had the space to do it in a while so I have a kit stash in my basement.

Union Pacific used to do this too which was why UP model railroad stuff was a little more pricey than other roadnames. One of the companies UP threatened to sue did something amazing and stood up to UP’s bullying and actually somehow managed to negotiate a perpetual royaltyfree license not only for themselves but every other model railroad business — even knowing that they could be harming their own profit margin by helping their competitors.

I was stunned when I heard about it. There really are some good businessmen left in the world. But they don’t work at Ford, it seems.

But I doubt the kit industry is going away any time soon — I’m sure they’ll probably follow suit somehow, especially since a lot of the subjects they replicate were paid for by the taxpayers and therefore many would argue that they should be copyable at least by US citizens.

@Buran:Obviously every retailer should treat customers with respect but they also need to make sure they are not infringing copyrights. The place you go that does not ask any questions may be more convenient for you but if they are shut down by a expensive settlement then they will not be convenient any longer.

@ Meg Marco-caption correction alert-As ProfessorJonathan and Photogdc point out, it’s Trademark and not Copyright infringement that Ford claims. While they both can be abused, Ford isn’t claiming ownership of pictures Joe Schmoe took, just the car subjects of those pictures. It might be a dumb claim either way, but it’s the difference between dumb and too laughable to even say with a straight face. The original BB article catches the distinction.

It is all about context. It sounds to me like the cars in the calendar were basically product shots. [www.irphotoschool.com] In that case yes Ford does own the copyright to the design of the car. Without a product release they are sunk.

If the calendar photos were editorial shots then ford does not have a case. [home.pon.net]

The Hot Rod mags fall into the editorial use of the copyrighted car designs. The photos they use are for illustrative purposes.

@Buran:
Actually, they were trying to get people to buy licenses to do any photographic work in NYC that depicts NYC.
Due to security concerns you cannot legally take any photos taken ON or near a Bridge without permission.

I’m a member of a Ford truck website and I have 4 Fords in my driveway right now. I’m really sad to read about this but I’ve posted a link to this article on our website hoping it will spark an interesting discussion. Any other Ford fans or anyone else with an educated opinion should feel free to check it out.

Ebay reacts the same as cafepress in this – If you try to sell a replica of some vintage Ferrari and list it on ebay stating clearly that it’s not real, and list it in the category they created specifically for replicas, ebay will cancel your listing if contacted by someone who is allegedly representing Ferrari.
They will do the same if you’re selling a stock car (corvette, fiero, etc.) and list its color as “Ferrari red” or say a custom with “Ferrari wheels”
Kinkos once refused to print a window sticker I made for my real ferrari (bearing our ferrari club logo) because it is “Ferrari’s property” I offered to show the title to the car which clearly showed I owned it, not Ferrari, and they still refused.

Using a photograph to sell a copyrighted object is considered fair use.
@rockergal: I am assuming you are talking just about NY. Taking a photo on a bridge or of a bridge is perfectly legal. Please link to the statute in question.

It would make more sense that it is trademark dilution, tarnishment, or blurring that Ford claims since “Ford’s trademarks which include the use of images of THEIR vehicles” is specifically mentioned.

However, perhaps both of you are missing that Ford is also putting copyright at issue – “Also, Ford claims that all the images, logos and designs OUR graphics team made for the BMC events using Danni are theirs as well”. Usually this is the case when there are derivative works like in photographing graffiti (See [www.nytimes.com]).

There is an issue about how and what is copyrighted etc. However at the very least as the copyright owner, Ford has the exclusive right:

- To reproduce the copyrighted work;
– To display the copyrighted work publicly;
– To prepare derivative works based on the copyrighted work; and
– To distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

Irrespective of if this issue is just legal puffery, I am sure that CafePress is intimidated by the potential for both claims and even if it is to its long term interest may not want to sort out such a matter in the short term.

A little more clarification on this: This is Cafepress saying they will not do it, becuase of prior issues with Ford. This does not appear to be a case of Ford actively persuing the issue.

HOWEVER! Ford’s lawyers have been VERY actively persuing aftermarket equipment manufacturers, such as Mustangs Plus, and threatening them with lawsuits for simply using the word Mustang in their businesses. Even if they have been doing it for 20+ years.

If you are a Ford or classic car/truck fan, I encourage you to get informed and let them know that they are only hurting themselves. Tell the salesmen if you go looking at a new vehicle.

They should get Hondas. I run a CRX club, our shirts all have the Honda and the CRX logos on them, our meets feature Honda banners, our pictures all feature (duh) our cars, and no one’s ever given us grief about it. I know of other honda clubs that hold their meets at dealerships or even factories, and are enthusiastically received by management. When you get right down to it, it’s free publicity for Honda. -shrug- Don’t get why any company would threaten legal action against someone who’s advertising for them for no compensation.

Maybe I should buy a ford and then sue them for failure to compensate me, since I’m advertising for them every time I drive the car with the Ford logos on it.

hmmm.. .Did I just violate copyright by saying Ford?I mean Ford is Ford’s name and belongs to Ford, right? ;)

@Photogdc: If it’s your own photo and your own copyright, and they still act like jerks about it, then they don’t deserve your business or your friends’/family’s. They can screw someone else as far as I’m concerned.

How about instead make a calendar of each of the fords being crushed. Ok, not the valuable classics, but some junkers, and make a big publicity thing about it. Hand them out for free at the next share holders meeting.that will get their attention.

There’s a legal and not legal way of doing everything. Failure to defend your trademarks can cause you to lose your trademarks. Ford’s gone down this path before, hence the GT40 instead of the GT, the Fusion instead of the Futura. Chances are, you can clear this stuff up legally beforehand and get permission. It’s not expensive (and maybe free) if there’s no profit motive.

I thought professional photographers could get away with using trademarked items as long as the items were being photographed in how they are used. IE: a car is shot being driven on a street vs. a car being used to I don’t know, fry burgers on?

I think if you take a picture of something (within reasonable bounds), you should be able to do whatever you want with it if you own the item in question.

But that’s the reasonable bounds. The test in this case is the association with Ford. If they dropped all of the Ford branding, put hot models on the cars, and called it “Ladies of the Black Mustang Club,” they’d probably fall within fair use without needing Ford’s permission (again, they could get that if they made the effort). The emphasis would be that it’s a hot model calendar. It could still be grey if there’s still too much emphasis on the Ford product.

Look at it this way… say I take a picture of you. I now own the rights to that photo, but don’t you think you have the right to demand payment for its promotional use (or veto such use, or kindly say, “go ahead”)?

So one can make use of competitors logos if making a comparison? Why not just make the calendar with a caption under each Mustang picture saying “I bet Chevy Camaro owners don’t have to deal with this trademark crap…”

Ford’s graspy jerk-off lawyers did the same thing to a classic Jaguar club who printed calendars of photos of their own cars. It’s a patently stupid move that serves only to alienate the company’s most passionate advocates, the people who restore, drive and love old Fords often buy new ones, and the people who’ve been the victim of this kind of heavy-handed treatment and had the company they’ve promoted for years spit in their faces are likely to buy a Toyota next time.

@balthisar: Well, I understand that in the wacky world of legalese, it might stand up, but as a matter of common sense, it’s hard for me to believe that a car-maker wouldn’t absolutely welcome that kind of enthusiasm for one of their models.

I could understand if somebody were copying Ford automobiles, or producing a product with the blue oval logo on it, but it just boggles my mind that they’re trying to protect their trademark from a car club who wants to put out a calendar. Why? What does Ford think it’s going to lose by allowing the calendar to be publised? The calendar is not claiming to be or being marketed as a Ford product.

@dwayne_dibbly: It’s a good point, but what’s being missed is that a trademark owner must, by law, defend that trademark or risk losing it. Say they let this club use it without a license. Then another club. And so on. Eventually, they won’t be able to tell a “legitimate” abuser to stop, because -hey!- there’s all of this existing precedent out there. Ford hasn’t defended its mark!

The same lawyers are probably direct Ford employees, and they’re probably Ford fans, and they can probably appreciate what the club is trying to do, but their hands are tied — not due to corporate policy, but by federal law.

The solution for these clubs is simple; all they have to do is approach Ford (or the NFL or Pixar) and license the material. If they can make the case, chances are the license will even be reasonably priced, perhaps free.

@swalve: What if McDonald’s sold little McDonald’s play-houses…millions of them. Let’s say they stopped making hamburgers altogether (we could only wish) and did nothing but make McHouses, complete with signature color scheme and golden arches.

What if people loved their McHouses so much that they had clubs, and a club wanted to produce a calendar of happy McHouse owners and their fantastic McHouses. Would McDonald’s be able to step in an say “No, you can’t do that?”

(Granted, it’s CafePress not printing the calendars because they’re worried about Ford suing them, but the idea is the same).

Companies like this are really killing the industry slowly but surely. They are stifling car enthusiasts who are the bread and butter of their business. So I will now have to walk around afraid of what classic ford product I take a picture of and sell? That’s how photographers make money, they sell their photographs duh. What a lame case. In true cases of deliberate malicious intent, and defamation of someone’s trademark I can understand. But a classic car enthusiast (such as myself) taking a picture of a car he likes or a car club making a calendar to promote their cars? come on! un fucking believable.

Maybe I can clarify this just a little bit. Think of the Mustang as a sculpture. If you created a sculpture and I took photos of the sculpture to sell, would you think that that would be right? Of course it wouldn’t. You own the copyright to that sculpture, to that art you created. I am making a copy of your art in a different medium.

Ford owns the copyright to that sculpture. The car club is ripping off Ford, even if it is unintentional.

This is a scary topic. In theory, if left unchecked it could allow a company to protect its trademark to the point of infringing on an individual’s right to take or develop pictures for purposes that are clearly “fair use”.

If a lawyer or insurance adjuster takes a photo of an Exploder (oops, Explorer) after a triple flip caused by defective Firestone tires, does the photo infringe on Ford and/or Firestone’s copyrights by exposing a product design flaw? If I take a photo of a collectible copyrighted item I own (such as an original Disney cartoon cell) in order to show it to a prospective buyer or document it for insurance purposes, is a developer such as Walmart justified in refusing to print the pictures?

I can understand a company protecting its products against others profiting from it; however the Supreme Court made it clear over 30 years ago that making a personal copy of copyrighted material is legal and well within the scope of fair use(the “Betamax Ruling”, allowing individuals to record copyrighted TV programs for personal viewing).

If your local photo lab doesn’t have the brains or bal*s to recognize “fair use”, put away grandpa’s 35mm Nikon, pull out your digital camera and print the photos at home or on a self-service digital print kiosk at your local store.

@trollkiller To answer your question most definitely. It is right for a Photographer to sell one of their photos. They could have a better creative vision, better lighting technique, better equipment, better knowledge of their equipment, etc, etc, which might make their shot more artistic and desirable than an amateur’s photograph. It is their right to sell it. I would let a painter, a photographer, a videographer, or whomever do their representation of my sculpture and sell it. Because it is their artistic vision. Not mine. Now If someone blatantly rips off my sculpture by sculpting the exact same thing in the exact same style and selling it as their own knowing damn well it was my original idea then i’d be pissed. There’s a fine line but it’s there. If people were MAKING their own mustangs that looked just like ford’s and the logo was in the same script but just named different, then THAT would be trademark and copyright infringement.

@SoCalGNX: Wal-Mart actually called me when I sent them some of my digital photos to process. I had to sign a statement that I took the pictures in my backyard (with my Nikon D-40x) and that I was not copying pictures taken by a professional photographer.

@gman863: Walmart, or any other store that does photos (even copy centers) doesn’t have any business interest in either training the employees to know the difference, or caring whether there is a difference at all. They don’t want anything to do with the reasons for why you’re making the copy. They simply don’t care. The thing that matters is that you don’t have permission, and that’s good enough for them. If you don’t like it, don’t spend money there. Take it to Walgreens and use thier self-serve kiosk to make your copies, or go to Staples and use the self-serve color copier. The legality doesn’t change, but you’re taking the responsibility for understanding copyright law on yourself instead of putting it in the hands of a kid behind the counter acting on behalf of a multi-billion dollar company.

FYI about copyright suits: They come and seize the equipment used to make the offending material if they can. That means if Walmart gets caught violating copyrights, the courts seize their dye-sub printer. That’s a chance they simply won’t take, on top of the court costs, etc.

–on topic–

I think it’s bogus what Ford’s trying to do to its fans in this case, but I can understand where they’re coming from in a purely reflex-action sort of way.

They don’t know what the context for the photos is, how they’re being taken or portrayed, and what that says about Ford as a brand. Moreover, as a blanket rule, they don’t have the time or money to go check out everyone who wants to make and sell things using the Ford mark or imagery to make sure they’re using things right. So instead they say “No, you can’t do it at all” though, I bet if they asked they could have gotten permission, but now it’s moot. For all Ford knows, the Mustang club could have taken pictures of the cars with flat tires, all rusted up, slogans like “F*cker Only Rolls Downhill” on them. That wouldn’t be too great for the image of Ford, so they’d want to squash that. Or they could be using the cars in connection with illegal activities or in conjunction with companies Ford doesn’t have a business relationship with, and may not want one with.

The goal of these calendars is to make money, and they’re doing that by trading on the Ford name. You can’t make up a calendar using pictures of your Dell computer and then sell it and expect Dell not to get pissed about it. You’re making money based on their name.

I’m currently doing some graphic design work for one of the largest fan-based sci-fi groups around. They (and I by proxy) don’t have explicit permission to use any of the trademarks or copyrighted images, but they have a tenuous agreement where as long as nobody makes a profit it’s all good, and it seems to be working because everyone’s respecting it. It’s when you start making money off of someone elses trademarks and copyrights that people get bent and pissy.

@DeeJayQueue: For a more clear example: Say you took pictures of your Ford Mustang with a little girl in it, and put as a caption “Ford Mustangs are great for picking up little girls, ha ha ha” that would be pretty skeevy right? That would be pretty potentially damaging to Ford’s reputation right? Well, for the most part, they wouldn’t have any way to keep that sort of thing from happening until after it’s been produced and put up for sale unless they policed their trademarks and copyrights heavily, which is what they’re doing here.

I think they could just as easily have let this go, or struck a deal with the BMC but they do have a valid reason for C&D-ing the calendars.

@trollkiller: The real question in that case then is what is the trademark (the design? the logo?) or the copyrighted material and what rights does the owner have?

As I pointed out in previous posts trademark is usually pro-consumer, and copyright is usually anti-consumer since trademark usually deals with consumer confusion, and copyright usually deals with the protection of an artificial monopoly given for work produced by the sweat of the brow.

Here though I am sure people realize is a competition between two businesses (with an outsourced producer in the middle), not between a consumer and a business.

Ford does seem to be using trademark as if it was a copyright. This really seems to be a question not of society being over-lawyered, but more importantly of businesses asserting greater legal rights than they actually have and no lawyer, judge, or legislative/regulatory/executive body correcting them.

My name is Whitney Drake and I work in Ford Communications. We’ve been watching this discussion with interest and I’d like to clarify what is essentially a misunderstanding.

Yesterday we spoke to both Cafe Press and the Black Mustang Club and explained the situation (about the Black Mustang Club’s calendar) to everyone’s satisfaction. Ford has no problem with Mustang or other car owners taking pictures of their vehicles for use in club materials like calendars. What we do have an issue with are individuals using Ford’s logo and other trademarks for products they intend to sell. Understandably, we have to take the protection of our brands and licensing very seriously.

Ford did not send the Black Mustang Club a “cease and desist” letter telling them that they could not use images of their own cars in their calendar. The decision not to allow the calendars to be printed was made by Cafe Press, because we had gotten in touch with them in the past about trademark infringements on products they sold.

I think it is great that the Black Mustang Club, and any other enthusiast club, would take pictures of their own vehicles for use in calendars or other materials.

I’m looking forward to purchasing a copy to hang in the garage next to my Mustang (even if mine isn’t black).

@morsteen: You may allow a photographer to sell images of your artwork but others may not. Take a look at [www.benedict.com] the article is a good strting point with a case example of a sculpture copyright holder defending his copyright against a movie studio.

@rockergal: Yea they are still enforceing that law, in a way. I didn’t know about it until after taking many pictures of the Brooklyn Bridge (I’m an amature shutter-bug with a D-40 SLR). Near the end of the walk, a police officer bleeped(?) his siren and waved for me to come over there. I just continued walking…

Cafe press needs to man up! I had my store closed when I made some really cool anti walmart shirts, I called them & they couldn’t reinstate my store fast enough, then late one night closed it again. I have never bothered with them since. Man up cafe press, man up!